Net Neutrality Update: The D.C. Circuit Goes Through the Motions

Court resists FCC efforts to delay judicial review.

It’s been several months since that Hot Topic Of All Hot Topics, net neutrality, graced our space here. When last we reported on the subject, the net neutrality order had finally made it into the Federal Register, a number of parties had sought judicial review in a number of federal courts of appeals, the D.C. Circuit had been picked as the lucky court that will hear arguments on the matter, and a lone petition for reconsideration of the order had been filed with the Commission.

Then things got quiet.

It turns out that, despite the silence, things have been happening down at the D.C. Circuit. Earlier this month the court acted on a couple of FCC motions. While the court’s order consists of a whopping three sentences, it at least provides some tea leaves for us to study while we wait for further developments.

At issue were (a) the FCC motion to dismiss Verizon’s “notice of appeal” and (b) an FCC motion to have the court hold the case in abeyance while the Commission addresses the one petition for reconsideration of the net neutrality decision that was filed with the agency. [Spoiler alert: the court denies the abeyance request, but leaves the motion to dismiss in limbo.]

You can find the background on the Verizon notice of appeal in this series of posts from last year. As we indicated back then, Verizon filed both a “notice of appeal” (pursuant to Section 402(b) of the Communications Act) and a “petition for review” (pursuant to Section 402(a)) in an apparent effort to boost the chances that the D.C. Circuit would be the U.S. Court of Appeals to decide the fate of net neutrality. The Commission moved to dismiss the former almost immediately, presumably in the hope that, if the Verizon appeal were dismissed, the case might ultimately land in some other circuit.

Before Verizon even got a chance to oppose the FCC’s motion last fall, the Joint Panel on Multidistrict Litigation (JPML) had selected the D.C. Circuit to hear the case, so the Commission’s motion was moot.

Or maybe not.

Once the D.C. Circuit had jurisdiction of the case (that is, after the JPML had pulled the D.C. Circuit’s ping pong ball out of the official drum), we expected (a) the FCC to withdraw its motion and/or (b) Verizon to withdraw its “notice of appeal”. Neither of those things happened. 

Instead, Verizon filed an opposition to the FCC’s motion to dismiss, and the FCC replied. In its reply the FCC acknowledged that the jurisdictional issue the two parties were bickering over “will have little practical effect” on the case. Nevertheless, both sides pressed the Court for resolution of an issue that both seemed to agree was no longer important.

Which brings us to the court’s recent order. Rather than toss the Commission’s motion to dismiss as moot, the court has referred that motion to the panel of judges who will be assigned to hear the case. Most importantly, the court has directed the FCC and Verizon “to address in their briefs the issues presented” in the motion to dismiss; the parties are specifically ordered not simply to incorporate their previous arguments by reference.

Our guess is that, by taking incorporation by reference off the table, the court is calling the FCC’s bluff. If the FCC really still thinks that it’s important for the court to address the jurisdictional arguments presented in the motion to dismiss, then the FCC is going to have to dedicate precious space in its brief to those arguments. 

Contrary to what some readers may think, appellate briefs are subject to tight length limitations. Cases involving major league issues (like net neutrality) can easily require all the permitted space (probably with considerable squeezing to meet the court-imposed limits). Under such circumstances, a party would normally be reluctant to chew up valuable space tilting at unnecessary windmills. So it will be interesting to see if, in its brief, the Commission chooses to pursue the question of whether Verizon’s notice of appeal should have been dismissed. (Our guess is that the issue will be dropped by all concerned.)

And the FCC’s motion to hold the case in abeyance? The court denied the motion without discussion. The Commission had argued that, because the one and only petition for reconsideration of the net neutrality order is still pending, the whole proceeding is still technically in flux, and the court might want to hold off on wading into it until the FCC has acted on the pending recon.

That’s a classic argument, one the Commission has presented, successfully, many times before. And it often makes sense. Why, after all, should the court start to review an order which is still subject to change? No point in trying to hit a moving target.

But here, the single petition for reconsideration involves a very limited aspect of the overall net neutrality decision. (It seeks clarification of the “special services” aspect of the order.) By contrast, Verizon is challenging the most fundamental aspects of the decision, including particularly whether the FCC has the necessary authority to engage in net neutrality regulation. 

In its opposition to the Commission’s abeyance motion, Verizon argued that, given the limited nature of the matters still before the Commission, resolution of the petition for reconsideration will not affect the core issue already before the court. In other words, the real target of Verizon’s challenge will not be moving around at all.

If the court had any reluctance at all about diving into the net neutrality morass sooner rather than later, it could have granted the Commission’s motion. That would likely have delayed the judicial review process for months at least, maybe years. But the court declined that opportunity. Court to parties: bring it on . . . now.

Of course, the court still had not, at last check, announced a briefing schedule for the case, much less an argument date. But the denial of the abeyance motion seems a pretty good indication that the court intends to keep its review of net neutrality moving as quickly as possible.

Be sure to check back with CommLawBlog for updates.

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